With the Court set to rule on the constitutionality of lethal injection, it has taken an equally important case to review the constitutionality of capital punishment for non-homicide crimes. Patrick Kennedy, 43, was sentenced to death for the rape of his 8-year-old stepdaughter in Louisiana — one of only two death row inmates sentenced for a non-homicide crime. After decades of the Court pruning back the death penalty through exceptions, this could be a case where there is an expansion of capital punishment.
The assumption has been that the death penalty requires a killing after the Supreme Court banned executions in 1977. Forty-five states ban the death penalty for rape, but five states — Montana, Oklahoma, South Carolina and Texas — allow it for child rape cases. The last time that anyone was executed for a non-homicide was in 1964.
It is the defense that appealed the case after Louisiana upheld the law and the conviction. Chief Justice Pascal Calogero dissented in that opinion, saying that “the Eighth Amendment precludes capital punishment for any offense that does not involve the death of the victim.”
The Court is also considering a Louisiana death penalty case this term on the exclusion of blacks for a jury.
Kennedy will soon have company in his infamous category of crime on death row. Last month, in Shreveport, a jury sentenced Richard Davis, 35, to death for repeatedly raping a 5-year-old girl. in her final argument, local prosecutor Lea Hall told jurors: “Execute this man. Justice has a sword and this sword needs to swing today.”
This may not be the best time to bring the Kennedy case before the Court. With the addition of Sam Alito, the odds are in favor of an expansion not restriction of the death penalty. Nevertheless it could be close with once again Kennedy as the swing vote.
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